The New River is the dirtiest river in the United States. It was
formed in the early 20th Century when U.S. farmers were trying to
reroute water from the Colorado River. Since its inception, farmers
have viewed it as a disposal cite. At the end of the 20th Century,
after more than 50 years of bureaucratic stalling from Washington,
the prospects for cleaning up the river are good.

However, complete restoration of the river will take at least 10
years. It is more likely that the pollution generated in the
Mexicali, Mexico area as a result of maquiladora-related activity
will be addressed before the pollution generated by the farmers in
Imperial Valley, California and Mexicali Valley, Mexico. The
important question in this and other cases related to the U.S.-
Mexico border is whether free trade will encourage Mexico to clean up
its environment or whether free trade will degrade the environment
further.

2. Description:

The New River is renowned as being, unequivocally, "one of the
dirtiest in the western hemisphere." In the early 20th Century, the
river was created to provide irrigation for farmers in Imperial
Valley, California. Engineers were trying to tap the Colorado River
in Mexico to avoid U.S. federal government regulations. Their
intention was to create a canal that started in Mexico and went to
the Imperial Valley. The method used to tap the Colorado River was
poorly designed and it broke in 1905. The Colorado River was entirely
diverted for 18 months. By the time the river was diverted back to
its original path, the New River and the Salton Sea were created.

The source of irrigation water came from the Colorado River. The
origin of the New River is 10 miles south of the California - Mexico
border. It passes through Mexicali and Imperial Valley before flowing
into the Salton Sea, which is 60 miles north of the border.

Pollution is collected from three primary sources: the
maquiladoras in Mexicali, agricultural runoff in Mexicali Valley and
runoff in Imperial Valley. The waste eventually flows into the Salton
Sea. Essentially, there are two environmental problems: the pollution
that constantly inundates the New River, making it a life-threatening
hazard to humans and other animals, and the pollution that collects
in the Salton Sea, which threatens wildlife that depend on the sea.
As with many environmental problems, the pollution generated in this
case is the direct result of economic activity.

In the case of the farms in Mexico, exports are a significant
factor in production. At Imperial Valley farms, exports are not a
significant factor in production. Regarding the maquiladoras in the
Mexicali, Mexico area, trade is integral to pollution. The rise in
the number of maquiladoras has increased the population in Mexicali.
The maquiladoras were designed to be an export sector for Mexican
industry. The increase in population has caused a rise in the volume
of sewage. Much of the sewage is not treated.

The health risk of the river is acute. As of now, 28 viruses are
known to exist in the river, for example, typhoid, salmonella, polio,
e. coli, hepatitis A, shigellosis, and staphylococci. Some of the
chemicals known to exist in the river are DDT, dicholomehtnae,
polychlorinated biphenyls, and pesticides.

Two examples illustrate the danger the river poses. One regards a
man who was murdered: the police originally thought "the man had been
burned to death, but they later discovered the chemicals in the New
River had simply eaten the flesh from his bones. The second concerns
a woman who became ill: a woman who visited the New River contracted
encephalitis, carried by mosquitos which breed in the New River.

Pesticides, in particular, are a health risk. Pesticides are a
threat to the workers who use them; they leach into the fruits and
vegetables and ground water; in addition, the wind can blow them into
non-farm areas, causing additional danger to humans and the
environment. Furthermore, the extent of health risk that wind-blown
pesticides pose is unknown.

The impact on the wildlife is severe. The fish in the New River
have dangerously high levels of DDT and other chemicals in their
system. Fishermen would be well advised to carefully screen their
catch. The wildlife in and around the Salton Sea are devastated as
well. The U. S. Fish and Wildlife have confirmed that selenium from
farms has reduced the number of embryos of the Black-Necked Stilt by
4 percent. In addition, the rise in the level of salinity is due to
farm runoff. If the level of salinity is not reduced, the fish
population could die off completely.

Since the creation of the New River, it has been viewed as a means
of pollution disposal. In addition, at least since 1944, the river
has had severe pollution problem. The International Boundary and
Water Commission (IBWC) stated that the river was the "most urgent"
of all the border sanitation problems. Local residents of Imperial
Valley have tried to get the federal government to take action for
over 50 years.

The Mexicans have made progress in cleaning up the river. In the
1980s, it built a wastewater treatment plant to reduce the amount of
untreated sewage and waste that entered the river. Despite this,
sewage and industrial waste enter the river. The long term goal is to
reduce emissions into the river entirely. Officials believe that by
controlling the waste at the Port of Entry east of Mexicali, the
pollution from the industrial activity in the Mexicali area will
stop.

In 1995, both governments are attempting to address the
environmental degradation. Construction on Mexicali II, the second
wastewater treatment plant, began in 1993 yet financing of the
project is not complete. Financial estimates for Mexicali II have
ranged as high as $400 million but the IBWC believes that a facility
can be built for $60-$100 million and be completed in a period of 5
years. To date, the EPA has pledged $47. 5 million. NADBank, created
by the NAFTA to fund projects such as this, will contribute to the
project but the amount has yet to be determined. Clearly, funding is
still needed for the project.

Currently, the IBWC is managing the project but the management of
the project will switch to the BECC, a NAFTA body. According to the
NAFTA Supplemental Agreements, the BECC, which is created by the
NAFTA, is authorized to perform a variety of activities. Part 3,
Article 10 of the NAFTA Supplemental Agreements outlines the
functions of the BECC.

In addition to the treatment plants, the EPA is contributing to
the clean up effort by trying to assess which toxins are in the
river. In October 1994, the EPA subpoenaed 95 companies to find out
which companies were putting waste into the river. Only 25 of the 95
firms complied with the subpoena. After conducting tests, the EPA
plans to "encourage firms to pre-test waste water before discharging
it." This project is ongoing. Regarding pesticides, substantial
solutions for the pollution caused by the pesticides have not been
forthcoming yet.

The environmental risks and health risks have existed for many
years; solutions are slow in coming. The New River pollution problem
is an urgent one. According to Duncan Hunter Congressman from San
Diego, there is a risk that the cost of clean up could become
prohibitive, if permanent solutions are not enacted in the near
future.

The purpose of the following list is to allow a researcher to
pursue this case further, by focusing his research on specific
participants (see Table 142-1).

5. Discourse and Status: AGReement and INPROGress Both
countries are working together to bring Mexican regulatory standards
for pesticides into agreement with American standards. This is not to
say that the Mexican regulatory standards are poor; there are well
over 60 pesticides for which each country must set a standard.
Different countries have different opinions. The Food and Drug
Administration (FDA) signed a Memorandum of Understanding with Mexico
which "helped establish regular communication between the two
countries."

In the case of maquiladoras, the United States and Mexico have
worked together for many years to solve this problem. The two
countries signed the Border Environmental Agreements in 1983 (see
LAPAZ case). This agreement addressed a host of border environmental
problems. The 1983 agreement allows both countries to þprevent,
reduce, and eliminate sources of air, water, and land pollution in a
100-kilometer wide zone along each side of the boundary." For the
first time in their working relationship on environmental issues, the
two countries defined the principal goals for environmental problems
on the border.

The Annex III to the 1983 agreement, which was signed on November
12, 1986 has importance in this case also. It concerns hazardous
waste created by maquiladoras. According to Mexican law, hazardous
waste created at the maquiladoras by raw materials from the United
States must be returned to the United States.

This annex assists this process. The NAFTA is responsible for
governing a variety of issues; one of them is the cross-border
pollution relating to the maquiladoras. However, it is a weak
environmental document because it does not provide for rigorous
enforcement. It calls for countries to "consider implementing in its
law any recommendation developed by the Council under Article
10(5)(b)" and to "consider prohibiting the export to the territories
of the other Parties of a pesticide or toxic substance whose use is
prohibited within the Party's territory." This wording allows for
countries to ignore environmental concerns. Further, the NAFTA's
provisions can be used only if Mexico's laws which deal with
pollution are not being enforced. In addition, the U. S. must provide
evidence that there has been a "persistent pattern" of failure to
enforce those laws(see NAFTA case).

6. Forum and Scope: NAFTA and BILATeral

7. Decision Breadth: 2 (USA and Mexico)

8. Legal Standing: TREATY

The legal standing of this case has grown in complexity over the
course of 100 years. The first agreement to work together on border
issues was signed in 1889. The agreement is known as the
International Boundary Convention, which established the IBWC. The
Water Treaty of 1944 allowed the IBWC to enforce agreements between
the U. S. and Mexico. Activities included making wastewater
collection systems. Its actions are related to "planning,
construction, operation, and maintenance of joint works, cost sharing
and other aspects of joint activities."

In 1983, the Border Environmental Agreements was added as a way to
address numerous border environmental problems. The 1983 agreement
allows both countries to "prevent, reduce, and eliminate sources of
air, water, and land pollution in a 100-kilometer wide zone along
each side of the boundary." For the first time, the agreement defined
the principal goals for environmental problems on the border.

Annexes II & III have relevance to this case. Annex II was
signed on July 18, 1985. Annex II and the 1988 Joint U.S.-Mexico
Contingency Plan for Accidental Releases of Hazardous Substances
Along the Border established the Inland Joint Response team (JRT).
The JRT is authorized to respond to emergencies associated with oil
and hazardous substance spills. Currently, the legal standing rests
in several places. The principal place is the NAFTA. Either of the
two countries can file complaints to the Commission for Environmental
Cooperation. However, interest groups and organizations, such as
Greenpeace, can file petitions to the EPA, demanding action for
alleged violations.

As noted in the Description, as a result of a petition submitted
in 1994, the EPA subpoenaed 95 U. S. companies in 1994 under the
Toxic Substances Control Act (TSCA). Both countries can use current
laws to force maquiladora owners and farmers to comply to current
regulations. Mexico passed the 1988 General Ecology Law which covers
maquiladora-related pollution.

In the United States, the following laws are relevant: the
Resource Conservation and Recovery Act, concerning hazardous waste,
the Toxic Substances Control Act, Section 11 can be used to issue
subpoenas to obtain information from companies regarding chemical
"use and release", the Clean Water Act, the Migratory Bird Treaty
Act, and the Endangered Species Act (see TIMOWL case). Another
relevant factor is the existing legal systems in each country.

Both countries "enact, develop, implement, and enforce their laws,
regulations, and standards within different legal systems and
frameworks." The U.S. system is built on a tradition of common law.
Mexico's system is built on civil law, which relies less on the
judiciary for þdeveloping and interpretingþ the law.

The primary difference between the two systems is that enforcement
lies principally within the executive branch in the Mexican system,
whereas, in the U.S. system, the judiciary is much more involved in
enforcement. This points to potential breakdowns in the enforcement
process because it increases the likelihood that Mexican officials
could be bribed by unscrupulous maquiladora managers and farmers.

III. GEOGRAPHIC CLUSTERS

9. Geographic Locations:

a. Geographic Domain: North America [NAMER]

b. Geographic Site: Western North America
[WNAMER]

c. Geographic Impact: MEXICO

10. Sub-National Factors: YES

California state law is also relevant. It has numerous laws which
cover a wide variety of environmental issues pertinent to this case.
The Fish & Game Code section 5650 relates to pollution of water
þwhere it can pass into waters of this Stateþ; this has
direct implications for this case. The Fish and Game Code section
7710 provides for the protection of endangered species.

Health & Safety Code section 5410 covers sewage and other
waste. The Pesticide Contamination Prevention Act 1986 deals with the
runoff and absorption of pesticides into the soil and the
groundwater. Standards must be at least as stringent as the
EPAþs standards. There are also statutes under the following
headings:

Water Quality and Wildlife that are relevant. Moreover, the State
of California has provisions to handle emergencies. In the event of
an emergency, the Governorþs office of Emergency Services has
the authority to act appropriately regarding New River issues.

11. Type of Habitat: DRY

The habitat around the river has a tendency to be a little wetter
than the rest of the desert. Surrounding the Salton Sea is 2,200
acres of marsh, encompassed in the Salton Sea National Wildlife
Refuge.

IV. TRADE CLUSTERS

12. Type of Measure: Regulatory Standard [REGSTD] The
maquiladoras and farmers are required to dispose of pollutants in
ways that are not harmful to the environment. The farmers in the
Imperial Valley use tributaries connected to the New River as
drainage ditches. Don Cox, director of the Imperial Irrigation
District, said that drainage ditches and the New River are essential
to prevent the farms from becoming too salty to grow produce. The
tributaries drain the fertilizers, pesticides, and salts from the
farms.

13. Direct vs. Indirect Impact: DIRect

14. Relation of Measure to Impact

a. Directly Related: NO

b. Indirectly Related: YES FOOD

c. Not Related: NO

d. Process Related: YES Pollution Sea [POLS]

15. Trade Product Identification: FOOD

The products in this case concern products produced by the farmers
along the New River, as well as by the maquiladoras in Mexicali. The
farmers produce a variety of fruit and vegetables. The maquiladoras
produce electronic materials and supplies, manufactured products,
transportation equipment, petroleum products, plastics, metal-related
products, and medical supplies.

16. Economic Data:

The economic impact on local economies in the Salton Sea and
Imperial Valley area is quite severe. The Salton Sea area has a $76
million tourist industry. Avid bird watchers add $3.1 million to the
local economy annually. The pollution generated by the farmers and
the maquiladoras decreases the number of animals which rely on the
sea; as a result, the beauty of the sea is affected adversely. For
this reason, between 1986 and 1993, the number of tourists visiting
the Salton Sea State Recreation Area dropped by 66 percent. In
Imperial County, the unemployment rate was 30 percent as of March,
1994. At that time, the nation as a whole was experiencing an
economic boom.

Regarding the Mexican agricultural component of the pollution, the
U.S. receives a significant percentage of all its fruit and vegetable
imports from Mexico. The U.S. market is an important aspect of the
agricultural sector south of Mexicali.

The issue of the maquiladoras in and around Mexicali is
particularly disturbing. Currently, the population is 710,00 in the
Mexicali-Calexico area. The U.S. Council of the Mexico-U.S. Business
Committee estimated that by 2003 the population will be 900,000.

This creates a tremendous pressure for jobs and the number of
maquiladoras could increase as a result of the increased number of
worker. The number of maquiladoras in Mexicali in 1991 was 122 and
the number of employees was 19,400. The number of maquiladoras in
January 1995 was a little higher at 125, with 19,772 employees.In
addition, social services, need to be provided and without proper
social services for these people, the risk of environmental abuse
increases.

The State Department estimates that the NAFTA would open up
opportunities in Mexico for industries away from the maquiladora
sector, thereby reducing the amount of pollution generated in the
area. This is encouraging since the maquiladora trade has ballooned
since 1980, increasing from $4.3 billion to $27.5 billion along the
entire border area (see TIJUANA case)..

17. Impact of Trade Restriction: LOW

Currently, the problem with the regulations is enforcement. In
Mexico, enforcement is very lax and evasion is easy. Bribery of
officials is also a problem. Recently, more officials were hired to
enforce the environmental regulations but the effectiveness of the
new regulators is unclear at this point.

18. Industry Sector: FOOD

The products range from dates in the Imperial Valley to
strawberries in Mexico. Table 142-2 contains agricultural data for
Imperial Valley in 1994.

Table 142-2

Imperial Valley Agricultural
Data

ITEM

Acres Production

Value

Fruits & Nuts

4,741

$30 million

Vegetables & Melon Crops

113,784

$350 million

Field Crops

391

$297 million

Seed Nursery Crops

31,000

$29 million

Apiary (Bees)

---

$ 1. 7 million

Livestock

390,000

$ 242 million

Totals

540,000

$ 951 million

19. Exporters and Importers: USA and MEXICO

V. ENVIRONMENT CLUSTERS

20. Environmental Problem Type: Pollution Sea
[POLS]

The pollution of the New River is a problem that extends to many
parts of the environment. Formation of pollutants destined for the
Salton Sea begins at the farms in the Imperial Valley and Mexicali
Valley, and at the maquiladoras in Mexicali.

Pesticides, fertilizers, and salts from agricultural activity
raise the salinity level of the Salton Sea. Other pollutants,
generated by the maquiladoras and which have yet to be determined,
find their way into the Salton Sea also. In addition, there is a
possibility that pesticides leech into the groundwater. This problem
has occurred in Mexico but has not yet occurred in the United
States.

The New River is constantly a hazard as a result of maquiladora
waste, making recreational use of the river highly dangerous
throughout the year. Their waste is dumped illegally at anonymous
sites. In fact, the NAFTA addresses the issue of hazardous waste
sites. The U.S. Council of the Mexico-U. S.

Business Committee estimated that the construction of such sites
in Mexicali would cost well over $38 million.

21. Species Information

Name: Many

Type: Many

Diversity: 26,071 higher plants per 10,000 km/sq (Mexico)

Regarding fish, the impact has been worse. As far back as 1984,
chemicals stared showing up in fish. One result of the increase in
toxins in the sea is that the catch of fish is down 90 percent during
this decade. In addition to the Desert Pupfish (Cyprinodontidae), the
pollution adversely affects the Black- Necked Stilt; reproduction is
being curtailed by 4 percent.

During the winter of 1992, 150,000 Eared Grebes died. There are
approximately 400 species of birds that live or pass through the
Salton Sea. (The Yuma Clapper Rail and the Megalornis Canadensis
Mexicanus are two types of birds that pass through.) Increased
pollution of the sea threatens to reduce the diversity of the sea,
ruining its natural character. One scientist commented, "The tough
ones learn to adapt and survive; the others move elsewhere."

22. Impact and Effect: LOW and Structural
[STRCT]

23. Urgency and Lifetime: MEDium and 100s of years

24. Substitutes: Biodegradable Products [BIODG]

A possible substitute for pesticides is to change the way crops
are grown. Since World War II, there has been a rapid rise in
single-crop farming. This type of farming leaves crops vulnerable to
their natural enemy. Thus, the need for pesticides rises. However,
there are alternatives. Greenpeace has the following recommendations,
"introducing and conserving beneficial insects, rotating and
diversifying crops from year to year, changing tillage practices,
selecting resistant plant varieties, timing the planting of crops to
avoid attack by pests or simply planting crops in their appropriate
climate." In this way, the farmers in this case could avoid using
polychlorinated biphenyls, DDT, dichloromethane, and other
pesticides.

VI. OTHER FACTORS:

25. Culture: NO

26. Trans-border: YES

The New River affects both the United States and Mexico.

27. Rights: NO

A violation of human rights exists only to the degree that one
believes that all men have a right to a clean environment. There is
no physical abuse of human rights occurring.

References:

28. Relevant Literature:

Arthur Cleveland Bent, Life Histories of North American Marsh
Birds, (Toronto: General Publishing Co., Ltd., 1963). Arthur
Cleveland Bent, Life Histories of North American Cuckoos,
Goat-Suckers, Hummingbirds, and Their Allies Part I &II, (New
York: Dove Publishing Inc., 1964).